1970 (8) TMI 73

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..... y the postal department merely raised a rebuttable presumption or a conclusive one and whether in the circumstances of this case that presumption had been sufficiently rebutted." For the year 1962-63 an ex parte assessment order was passed against the assessee on 15th March, 1967. An appeal against the assessment order was filed on 7th July, 1967, nearly four months after the date of the asses .....

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..... e assessee filed an affidavit denying that he had refused to accept the service of the envelope containing the assessment order and the notice of demand, and also made an application under section 5 of the Limitation Act. The Assistant Commissioner (judicial) however did not accept the affidavit of the assessee and refused to condone the delay. He accordingly by his order dated 29th September, 196 .....

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..... e? (ii) As to whether on the facts of this case the presumption can be said to have been rebutted by the assessee. From a perusal of the order of the Judge (Revisions) as also from the language in which the question is couched, it is apparent that the admitted case of the parties was that when a letter is returned undelivered to the sender with the endorsement that the same had been refused by .....

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..... pends upon the findings recorded by the authority concerned on the material placed before it. Now, in the instant case the assessee had filed an affidavit saying that the envelope containing the assessment order and the notice of demand had never been tendered to him for delivery and he never refused to accept the same. The department has not led any evidence or pointed out any circumstances upon .....

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..... the question by saying that in the first instance it is a question of fact and not a question of law and secondly even if we were to answer such a question, our answer would be that in the circumstances of the case, the presumption of service had been sufficiently rebutted. We answer the two questions accordingly in favour of the assessee and against the department. As no one has appeared on beh .....

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